Having regard to the observations submitted by
the respondent Government and the observations in reply submitted by
the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mikhail Vladimirovich Smirnov,
is a Russian national who was born in 1956 and lives in St. Petersburg.
The applicant is a lawyer; at the material time he was a member of the
St. Petersburg United Bar Association (Санкт-Петербургская объединенная коллегия
адвокатов). The respondent Government are represented
by Mr P. Laptev, Representative of the Russian Federation at the European
Court of Human Rights.

A. The circumstances of the case

The facts of the case, as submitted by the parties,
may be summarised as follows.

1. Search at the applicant's place of
residence

On 20 January 1999 the St. Petersburg town prosecutor
opened criminal case no. 7806 against Sh., G. and fifteen other persons
who were suspected of forming and participating in an organised criminal
enterprise and of other serious offences.

On 7 March 2000 Mr D., an investigator with the
Department for especially serious crimes of the prosecutor's office,
issued a search warrant worded as follows:

“Taking into account that at the [applicant's]
place of residence at the address: [the applicant's home address] there
might be objects and documents that are of interest for the investigation
of criminal case [no. 7806]... I order to search the premises at the
address [the applicant's home address] where [the applicant] permanently
resides and to seize objects and documents found during the search.”

On the same day a deputy prosecutor of St. Petersburg
approved the search and countersigned the warrant.

The Government submit that the applicant was
not a party to criminal case no. 7806 and did not represent anyone involved.
The applicant replies that at the material time he was a representative
of:

(a) Mr S. who was first a suspect and later a
witness in criminal case no. 7806. On 21 February 2000 the applicant
represented S. before the Oktyabrskiy Court of St. Petersburg in the
proceedings concerning a complaint about the investigator D.'s decision.
The applicant was also S.'s representative in unrelated civil proceedings
on the basis of a power of attorney of 25 May 1999;

(b) Mr Yu. who was a defendant in criminal case
no. 7806 and whom the applicant represented from 10 July to 25 December
1998;

(c) Mr B. who was the victim in a criminal case
concerning the murder of his son. Subsequently that case was joined
to criminal case no. 7806. The applicant represented B. from 11 February
to 23 March 2000;

(d) Mr Sh. who was a defendant in criminal case
no. 7806 and whom the applicant represented before the Court (application
no. 29392/02).

On 9 March 2000 the investigator D., in the presence
of the applicant, assisted by police officers from the District directorate
for the fight against the organised crime (РУБОП) and two attesting witnesses (понятые), searched the applicant's flat. According to
the search record, the applicant was invited to “voluntarily surrender...
documents related to the public company TNKhK and federal industrial
group RossCo”. The applicant responded that he had no such documents
and signed under that statement.

The investigator found and seized over twenty
documents which the applicant declared to be his own and the central
unit of the applicant's computer. According to the search record, the
applicant had no complaints about the way the search was carried out,
yet he objected to the seizure of the central unit because it contained
two hard-disks and was worth 1,000 US dollars. The applicant submits
that the seized documents included, in particular, S.'s power of attorney
of 25 May 1999 and extracts of a memorandum prepared in B.'s case.

On the same date the investigator D. held a formal
interview with the applicant in the framework of criminal case no. 7806.

On 17 March 1999 the investigator L. issued an
order to attach the documents seized at the applicant's flat and the
central unit of his computer as “material exhibits” in criminal
case no. 7806.

2. Judicial review of the search and attachment
orders

The applicant complained to a court. He sought
to have the search and seizure of documents declared unlawful. He claimed,
in particular, that the central unit of the computer, as well as his
personal notebook and his clients' files and records, were not related
to the criminal case and could not be attached as exhibits because the
seizure had impaired his clients' defence rights.

On 19 April 2000 the Oktyabrskiy Court of the
Admiralteyskiy District of St. Petersburg heard the applicant's complaint.
The court found that the search had been approved and carried out in
accordance with the applicable provisions of the domestic law and had
therefore been lawful. As to the attachment of the computer, the court
ruled as follows:

“...the purpose of the search was to find objects
and documents in connection with a criminal case. During the search
a number of documents and a computer central unit were seized; they
were thoroughly examined by the investigator which is evident from the
record of the examination of the seized items and print-outs of the
files contained in the central unit.

Thus, the above shows that the aim of the search
has been achieved, however, the order to attach the seized objects and
documents as exhibits to the criminal case amounts to forfeiture of
the [applicant's] property which was taken from him and never returned.
While [the applicant] was neither a suspect, nor a defendant in the
criminal case and he was interviewed as a witness.

Under such circumstances, the constitutional
rights of the applicant who was deprived of his property were violated.
Having achieved the purpose of the search and recorded the results received,
the investigator, without any valid and lawful grounds, declared [the
applicant's property] to be exhibits...”

The court ordered that the applicant's documents,
his notebook and the central unit be returned to him.

On 25 May 2000 the St. Petersburg City Court
quashed the judgment of 19 April 2000 and remitted the case for a new
examination by a differently composed court. The City Court pointed
out that the first-instance court erroneously assimilated the order
on the attachment of objects as exhibits to forfeiture of the applicant's
property.

On 17 August 2000 the Oktyabrskiy Court of St.
Petersburg held a new hearing on the applicant's complaint. The court
ruled that the search of the applicant's flat had been justified and
lawful and that the remainder of the applicant's complaints were not
amenable to judicial review.

On 12 September 2000 the St. Petersburg City
Court quashed the judgment of 17 August 2000 and remitted the case for
a new examination by a differently composed court. The City Court found
that the first-instance court had failed to examine, in a sufficiently
thorough manner, whether the investigator had had sufficient grounds
to search the flat of the person who had not been charged with any criminal
offence.

On 17 November 2000 the Oktyabrskiy Court of
St. Petersburg delivered the final judgment on the applicant's complaint.
As regards the lawfulness of the search, the court found as follows:

“The search warrant was issued because there
were sufficient reasons [to believe] that [at the applicant's home address]
where [the applicant] lived there could be objects and documents that
could be used as evidence in one of the episodes of criminal case no.
7806. This fact was established by the court and confirmed by the materials
in the case-file, in particular, a statement by the investigator D[.]
of 16 November 2000, the decision to bring charges of 22 February 1999,
the decision to lodge an application for an extension of detention on
remand of 10 July [? - unclear] 2000, letter no. 200409 of 22 September
1998 and other materials; therefore, the court comes to the conclusion
that the search in [the applicant's] flat was justified under Article
168 of the RSFSR Code of Criminal Procedure...”

The court further established that the search
had been carried out in strict compliance with the laws on criminal
procedure. As regards the remainder of the applicant's claims, the court
decided that it was not competent to examine them, but it was open to
the applicant to complain about the investigator's decisions to a supervising
prosecutor.

On 19 December 2000 the St. Petersburg City Court
dismissed the applicant's appeal. It upheld the first-instance court's
findings to the effect that the search at the applicant's flat had been
justified and procedurally correct and that the order to attach objects
as exhibits was not amenable to judicial review because such an avenue
of appeal was not provided in the domestic law.

According to the applicant, he only received
the printed text of the city court's judgment on 28 May 2001.

B. Relevant domestic law

Grounds for a search

Article 168 of the RSFSR Code of Criminal Procedure
(“Grounds for carrying out a search”) provided that an investigator
could carry out a search to find objects and documents that were of
relevance to the case, provided that he had sufficient grounds to believe
that such objects and documents could be found in a specific place or
on a specific person. The search could be carried out on the basis of
a reasoned warrant issued by an investigator and approved by a prosecutor.

Complaints about an unlawful search

According to Article 218, a complaint against
the actions of an investigator could be brought either directly to a
prosecutor or through the person against whom the complaint was lodged.
In the latter case such person was to forward the complaint to the prosecutor
within twenty-four hours, together with his explanations.

On 23 March 1999 the Constitutional Court of
the Russian Federation ruled that decisions and actions of investigators
and prosecutors relating to a search, forfeiture of property, suspension
of proceedings and extension of time-limits for preliminary investigation
should be amenable to judicial review by the persons whose rights were
violated.

Under Article 219 the prosecutor was to examine
the complaint within three days and give a reasoned decision to the
complainant.

Material evidence

Article 83 defined material evidence as “any
objects that... carried traces of a criminal offence... and any other
objects that could be instrumental in detecting a crime, establishing
the factual circumstances of a case, identifying perpetrators or rebutting
the charges or extenuating the punishment”. Pursuant to Article 84,
material evidence was to be described in detail, photographed and attached
to the criminal case as exhibits by a special order of the investigator
or by a court decision. Article 85 provided that material evidence was
to be kept until the conviction came into force or the time-limit for
appeal expired. However, it could be returned to the owner before that
if such return would not harm on-going criminal proceedings. Under Article
86 the court was to order the return of material evidence to its legal
owner in the final decision closing the criminal proceedings.

COMPLAINTS

The applicant complains under Article 6 § 3
(c) of the Convention that the seizure of the central unit of his computer
and of his notebook impaired his clients' defence rights.

The applicant complains under Article 8 of the
Convention that an interference with his right to respect for his home
was not necessary in a democratic society because it was not proportionate
to the aims pursued.

The applicant complains under Article 1 of Protocol
No. 1 that he was deprived of his computer in breach of his property
rights.

The applicant complains under Articles 1 and
13 of the Convention that he had no effective remedy.

THE LAW

1. The applicant complained under Article 6 §
3 (c) of the Convention that the taking away of his computer and notebook
had been detrimental for his clients' rights. Article 6 § 3 reads as
follows:

“3. Everyone charged with a criminal offence
has the following minimum rights:

...

(c) to defend himself in person or through legal
assistance of his own choosing...”

The Court notes that the applicant was not charged
with a criminal offence and that he complains about a violation of other
persons' rights rather than his own. He is therefore not a “victim”
of the alleged violation.

It follows that this complaint is incompatible ratione personae
with the provisions of the Convention within the meaning of Article
35 § 3 and must be rejected in accordance with Article 35 § 4.

2. The applicant complained under Article 8 of
the Convention that the search at his place of residence was an unjustified
interference with his right to respect for his home. Article 8 of the
Convention reads as follows:

“1. Everyone has the right to respect for...
his home...

2. There shall be no interference by a public
authority with the exercise of this right except such as is in accordance
with the law and is necessary in a democratic society in the interests
of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection
of health or morals, or for the protection of the rights and freedoms
of others.”

The Government submit that the decision to search
the applicant's flat was based on testimony by witnesses and that the
search was necessary because “objects and documents having importance
for the investigation of criminal case no. 7806” could have been found
in the applicant's flat. The interference pursued the legitimate aim
of the protection of rights and freedoms of others. The applicant did
not object to the search.

The applicant avers that his flat was searched
with a view to obtaining evidence against his clients, including S.,
Yu., B. and many others, and getting access to the clients' files stored
in his computer. The search violated the attorney-client privilege and
it was followed by a formal interview: the investigator D. questioned
him about the circumstances of which he had become aware as a representative
of his clients. The applicant further submits that the search was authorised
by a deputy prosecutor and not by a court, as the Russian Constitution
requires.

The Court considers, in the light of the parties'
submissions, that the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an examination
of the merits. The Court concludes therefore that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has been
established.

3. The applicant complained under Article 1 of
Protocol No. 1 about a violation of his property rights resulting from
the seizure of his materials and computer. Article 1 of Protocol No.
1 provides as follows:

“Every natural or legal person is entitled
to the peaceful enjoyment of his possessions. No one shall be deprived
of his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of international
law.

The preceding provisions shall not, however,
in any way impair the right of a State to enforce such laws as it deems
necessary to control the use of property in accordance with the general
interest or to secure the payment of taxes or other contributions or
penalties.”

The Government submit that the central unit of
the applicant's computer was sealed and attached as a material exhibit
to criminal case no. 7806 in order to prevent loss of data. The examination
of the criminal case is not yet complete. The applicant's documents
and central unit will be stored in the St. Petersburg City Court until
such time as the judgment has been passed. Accordingly, the applicant's
right to use his property was restricted in the public interest, that
is the establishment of the truth in criminal case no. 7806. Moreover,
on 12 April 2000 the St. Petersburg town prosecutor invited the applicant
by mail to come to the office for his notebook and certain documents,
but the applicant never showed up.

The applicant considers that the seizure of the
central unit was a disproportionate interference with his property rights
and imposed an excessive burden on him. The central unit proper cannot
be used as an exhibit in the criminal case because it has not been an
instrument, object or product of a crime and it does not carry any traces
of a crime. Furthermore, the data contained therein cannot have any
evidentiary value either, because the unit has been for a long time
in possession of the prosecution and the date could have been erased
or modified. The applicant agrees with the reasons exposed in the judicial
decision of 19 April 2000. In his view, the prosecution should have
abided by that decision and should not have contested it on appeal.
The applicant claims that the real purpose of the seizure was to hinder
his professional activities as an advocate. The unlawful withholding
of his computer has deprived him of access to more than two hundred
files of his clients and it has been detrimental for his legal practice
as a whole. Finally, the applicant does not dispute that on 6 June 2000
he received his notebook and some documents back.

The Court considers, in the light of the parties'
submissions, that the complaint raises serious issues of fact and law
under the Convention, the determination of which requires an examination
of the merits. The Court concludes therefore that this complaint is
not manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. No other ground for declaring it inadmissible has been
established.

4. The applicant complained under Articles 1 and
13 of the Convention that he did not have an effective remedy for the
alleged violations of his rights. The Court considers that this complaint
falls to be examined under Article 13 which provides as follows:

“Everyone whose rights and freedoms as set
forth in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has been
committed by persons acting in an official capacity.”

(a) Insofar as the complaint under Article 13
may be understood as having been invoked in conjunction with Article
8, the Court notes that the applicant has had an opportunity to obtain
judicial review of his complaints relating to the allegedly unlawful
search. The requirement of effectiveness does not mean that the outcome
of the proceedings should correspond to the applicant's objectives (see Kaijalainen
v. Finland, no. 24671/94, Commission decision of 12 April 1996).

It follows that this part of the complaint is
manifestly ill-founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.

(b) Insofar as the applicant complained that he
did not have an effective remedy for the allegedly unlawful restriction
on his property rights, the Government submit that the applicant challenged
the contested decision to a court which considered and dismissed his
complaints (on 19 December 2000 in the final instance). Moreover, his
civil claim for damages against the St. Petersburg town prosecutor and
the Ministry of Finance is now pending before the Oktyabrskiy Court
of St. Petersburg.

The applicant submits that the scope of review
by the domestic courts was limited to the lawfulness of the search.
As to his property complaints, the courts decided that these issues
were not amenable to judicial review. In his view, the ruling of the
Constitutional Court of 23 March 1999 should have been interpreted as
opening a way for judicial review of all decisions affecting the person's
property rights. Furthermore, he submits that his civil claim for damages
has not been examined under various pretexts for more than four years,
since it was lodged on 2 August 2000.

The Court considers, in the light of the parties'
submissions, that this part of the complaint raises serious issues of
fact and law under the Convention, the determination of which requires
an examination of the merits. The Court concludes therefore that this
complaint is not manifestly ill-founded within the meaning of Article
35 § 3 of the Convention. No other ground for declaring it inadmissible
has been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant's
complaints concerning the search at his place of residence, seizure
of his belongings and his ability to challenge the seizure;